The Prop 8 Ruling: Discrimination as a Constitutional Principle

Editors' note:Editors' Note: Guest blogger Greta Christina is editor of the new anthology, "Best Erotic Comics," and "Paying For It: A Guide by Sex Workers for Their Clients," a book of advice for sex work customers, written by sex workers and former sex workers, published by Greenery Press.

Today, the California Supreme Court allowed discrimination to be written into the state constitution.

I'm not just upset about this for my own personal reasons. I'm not just upset because I'm a woman in love with and married to another woman, and marriage equality is an issue of great personal importance for me. I'm not just upset because I think LGBT rights, including marriage equality, are among the most important civil rights issues of our day, with implications for straight people as well as queer. I'm not even just upset because of the intensely personal slap in the face: the slap of being told, by a majority of the people in your state and by the highest court of that state, that I am now, officially and legally and inscribed into the state Constitution, a second-class citizen.

All of that is bad enough. But it's not the worst of it.

The worst of it is the precedent it sets.

See, this isn't just about gay rights and marriage equality. This is about the principle that certain rights are inalienable. This is about the principle that, as important as democracy is, as important as it is for people to be able to vote on the laws and policies that govern them, certain rights transcend that principle, and cannot be taken away by majority rule. This is about the principle that there are limits to mob rule: that the fears and hatreds and prejudices of one class of people towards another cannot be inscribed into law. This is about the principle that people have every right to be bigots, but they do not have the right to write their bigotry into law... even if that bigotry is shared by the majority.

That principle was violated today.

It is now official California state policy, written into our constitution, that fundamental rights can be taken away by a simple majority vote. It is now official California state policy that if enough people in the state don't like you, they can amend the constitution to restrict your access to the institutions and laws, the rights and responsibilities, that are generally available to everyone. It is now official California state policy that discrimination against a specific class of people can be written into the constitution if enough people support it. It is now official California state policy, written into our constitution, that the basic principle of equality is less important than mob rule.

I don't know enough about the law to know whether, from a purely legal standpoint, today's decision is appropriate or defensible. I don't know enough about the law to know how legal scholars will look at this decision in ten or twenty or fifty years; whether they will see it as unfortunate but legally necessary, or as a grotesque travesty of the most precious principles that are the foundation of the law, and indeed at the core of the very idea of justice.

I don't know enough about the law to judge whether this decision is legally supportable. But I know this: It is a gross miscarriage of justice. And my greatest fear is this: Even if Proposition 8 eventually gets overturned by yet another ballot initiative (which I expect it will, sooner or later), that miscarriage of justice -- the precedent that it's okay to amend the state constitution to discriminate against a particular class of citizens as long as that class is feared and despised by the majority -- will linger on.

Leave a comment

We want to know your opinion on this issue! While arguing about an opinion or idea is encouraged, personal attacks will not be tolerated. Please be respectful of others.

The editorial team will delete a comment that is off-topic, abusive, exceptionally incoherent, includes a slur or is soliciting and/or advertising. Repeated violations of the policy will result in revocation of your user account. Please keep in mind that this is our online home; ill-mannered house guests will be shown the door.

I AGREE IT IS NOT RIGHT TO TAKE YOUR NATURAL RIGHTS BECAUSE MAJORITY VOTES DONT LIEK WHAT YOU ARE AND WHAT YOU DO!!! CERTAIN THINGS SHOULD BE PROHIBITED BUT MARRIAGE SHOULD BE FREE FOR ANYONE AND EVERYONE!!! IT SHOULD NOT BE AGAINST THE LAW TO MARRY WHO YOU WANT TO MARRY BECAUSE THEY ARE THE SAME SEX AS YOU!!!! I THOUGHT THE LAW AND CHURCH WERE SEPARATED FOR REASONS LIKE THIS!!! WHAT ABOUT ATHEIST GAY COUPLES NAD LESBIAN COUPLES, THEY DON'T HAVE ANY CONNECTION TO THE CHURCH SO WHY SHOULD THEY NOT BE ALLOWED TO MARRY BECAUSE A CHURCH THAT THEY DON'T BELIEVE IN WON'T ALLOW THEM TOO!!!!!!!